Kahale v. City and County of Honolulu

• Decision Date: 12 May 2004
• Docket Number: No. 23934.,23934.
• Citation: 90 P.3d 233,104 Haw. 341
• Parties: Francis KAHALE, Jr. and Rachael Kahale, Individually and as next friend of Brandzie Kahale, a Minor, Plaintiffs-Appellants, v. CITY AND COUNTY OF HONOLULU, Defendant-Appellee and Doe Defendants 1-25, Defendants and City and County of Honolulu, Third-Party Plaintiff-Appellee v. Alfred Alameda, Third-Party Defendant-Appellee.
• Court: Hawaii Supreme Court

90 P.3d 233

104 Haw. 341

Francis KAHALE, Jr. and Rachael Kahale, Individually and as next friend of Brandzie Kahale, a Minor, Plaintiffs-Appellants, v.CITY AND COUNTY OF HONOLULU, Defendant-Appellee andDoe Defendants 1-25, Defendants andCity and County of Honolulu, Third-Party Plaintiff-Appellee v.Alfred Alameda, Third-Party Defendant-Appellee.

No. 23934.

Supreme Court of Hawai'i.

May 12, 2004.

David J. Gierlach and Christopher A. Dias, Honolulu, on the briefs, for the plaintiffs-appellantsFrancis Kahale, Jr. and Rachael Kahale.

James C. Butt, Deputy CorporationCounsel and Paul S. Kawai, Deputy CorporationCounsel, on the briefs, for the defendant-appelleeCity and County of Honolulu.

MOON, C.J., LEVINSON, and NAKAYAMA, JJ., with ACOBA, J., concurring separately and dissenting, and with whom Circuit Judge CHAN, assigned by reason of vacancy, joins.

Opinion of the Court by LEVINSON, J.

The plaintiffs-appellantsFrancis Kahale, Jr.(Francis), individually, and Rachael Kahale(Rachael), individually and as next friend of Brandzie Kahale(Brandzie), a minor [collectively, the "Plaintiffs"], appeal from (1) the September 29, 2000 order of the first circuit court, the Honorable Sabrina S. McKenna presiding, granting the motion of the defendant-appelleeCity and County of Honolulu(the "City") for summary judgment, and (2) the November 9, 2000 judgment, signed by Judge McKenna, in favor of the City and against the Plaintiffs.On appeal, the Plaintiffs contend that, inasmuch as they brought suit against the City pursuant to Hawai'i Revised Statutes (HRS) § 657-7(1993),¹the circuit court erred in concluding that the statute of limitations governing their claims was not tolled by the provisions of HRS § 657-13(1)(1993).²In response, the City argues that the Plaintiffs actually brought their claim against the City pursuant to HRS § 662-4(1993),³ rather than HRS § 657-7, and that HRS § 657-13 does not apply to actions commenced under HRS § 662-4, such that the statute of limitations was not subject to the tolling provisions of HRS § 657-13 and had run over a year prior to the date on which the Plaintiffs filed their complaint.

We hold that HRS § 46-72(1993)⁴ is the statute of limitations applicable to the present matter.We therefore overrule the holding of Salavea v. City and County of Honolulu,55 Haw. 216, 221, 517 P.2d 51, 54-55(1973), that, with respect to tort claims against the counties of this state, "HRS§ 662-4 is the applicable statute of limitations, superseding HRS § 46-72[.]"We also hold, pursuant to HRS § 657-13(1), that the counties of this state are subject to the infancy tolling provision generally applied in personal injury actions and that HRS § 657-13(1) tolled the running of the statute of limitations as to Brandzie's claims.Lastly, we hold that, inasmuch as Francis and Rachael, as individuals, suffered no disability for purposes of HRS § 657-13, Francis's and Rachael's claims, in their individual capacities, were not similarly tolled.Accordingly, we(1) vacate the circuit court's (a)September 29, 2000 order granting the City's motion for summary judgment as to Rachael's claims in her capacity as Brandzie's next friend and (b)November 9, 2000 judgment in favor of the City and against Rachael as Brandzie's next friend, (2) affirm the circuit court's (a)September 29, 2000 order granting the City's motion for summary judgment against Francis, generally, and Rachael, in her individual capacity, and (b)November 9, 2000 judgment against Francis, generally, and Rachael, in her individual capacity, and (3) remand this matter to the circuit court for further proceedings consistent with this opinion.

I.BACKGROUND

The Plaintiffs' complaint alleges the following.On May 26, 1996, Brandzie (who apparently was two months shy of seven years of age at the time) was lawfully on the premises of Waimanalo District Park, where she was attacked by a pit bull dog owned by the third-party defendant-appelleeAlfred H. Alameda.As a result of the attack, she suffered bodily injury and emotional distress.

On March 11, 1999, Brandzie's parents, Francis, in his individual capacity, and Rachael, individually and as Brandzie's next friend, filed a complaint against the City, alleging that the City's negligence legally caused injuries to Brandzie (Count I) and inflicted emotional distress and loss of consortium on Francis and Rachael (Count II).⁵Additionally, the Plaintiffs sought punitive damages against the City (Count III).

On April 13, 1999, the City filed a third-party complaint against Alameda, praying for contribution with respect to any judgment that the Plaintiffs might obtain against the City.On April 17, 2000, the Plaintiffs filed a cross-claim against Alameda, alleging that Alameda breached his duty to prevent his canine from causing Brandzie's injuries and further that Alameda's negligence had caused Francis and Rachael to suffer loss of consortium and the infliction of emotional distress.On April 20, 2000, the City filed a counterclaim against Francis and Rachael in their individual capacities, alleging that any injuries and/or damages to the Plaintiffs were the result of negligence or wrongful conduct on Francis's and Rachael's part.

On August 23, 2000, the City filed a motion for summary judgment against the Plaintiffs, arguing that HRS § 662-4, seesupra note 3, a provision of HRS chapter 662, the State Tort Liability Act (STLA), barred all of the Plaintiffs' claims against the City because the Plaintiffs had not brought them within the two-year period of the applicable statute of limitations.

On December 8, 2000, the Plaintiffs filed a notice of appeal from the circuit court's September 29, 2000 order granting the City's motion for summary judgment and the November 9, 2000 final judgment in favor of the City and against the Plaintiffs.

On November 16, 2000, the Plaintiffs filed a motion to stay proceedings,⁶ which the circuit court granted on December 26, 2000.

II.STANDARD OF REVIEW

We review the circuit court's grant or denial of summary judgment de novo.Hawai'i Community Federal Credit Union v. Keka,94 Hawai'i 213, 221, 11 P.3d 1, 9(2000).The standard for granting a motion for summary judgment is settled:

[S]ummary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.A fact is material if proof of that fact would have the effect of establishing or refuting one of the essential elements of a cause of action or defense asserted by the parties.The evidence must be viewed in the light most favorable to the non-moving party.In other words, we must view all of the evidence and the inferences drawn therefrom in the light most favorable to the party opposing the motion.

Id.(citations and internal quotation marks omitted).

SCI Management Corp. v. Sims,101 Hawai'i 438, 445, 71 P.3d 389, 396(2003)(quotingCoon v. City and County of Honolulu,98 Hawai'i 233, 244-45, 47 P.3d 348, 359-60(2002)).

III.DISCUSSION

On appeal, the Plaintiffs argue that the circuit court erred in granting the City's motion for summary judgment, inasmuch as HRS § 657-13(1), seesupra note 2, tolled the Plaintiffs' claims.Although the Plaintiffs acknowledge that, in Orso v. City and County of Honolulu,56 Haw. 241, 534 P.2d 489(1975), this court applied the two-year statute of limitations provided for in HRS § 662-4, seesupra note 3, to claims against the state's counties, they contend that the circuit court erred in interpreting Whittington v. State,72 Haw. 77, 806 P.2d 957(1991), as standing for the proposition that the City is excepted from the infancy tolling provision of HRS § 657-13(1).The Plaintiffs assert that, because the Whittington"infancy tolling exception" applies only to tort claims against the state brought pursuant to the STLA, and inasmuch as the Plaintiffs have grounded their claims against the City in the class of actions described in HRS § 657-7, seesupra note 1, the provisions of HRS § 657-13(1) therefore govern the present matter.

The Plaintiffs further maintain that "[this] Court in Orso did not extend the application of the entire [STLA] to claims against the counties, only the two[-]year statute of limitations," and that neither the jurisprudence of this court nor the legislative intent underlying HRS §§ 662-4 and 657-13 support the extension of the Whittington"infancy tolling exception" to the counties.Lastly, the Plaintiffs argue that "[t]he law in this State is abundantly clear that because of the vast differences between the State and the counties, the latter are not entitled to the same types of protection against claims as those enjoyed by the State."Based on the foregoing assertions, the Plaintiffs contend, pursuant to HRS § 657-13(1), that the statute of limitations does not begin to run on Rachael's claims on Brandzie's behalf until Brandzie reaches the age of majority in the year 2007 and that Francis's and Rachael's claims in their individual capacities are also tolled because they are derivative of Brandzie's claims for relief.

The City responds that, by virtue of the Orso decision, the Plaintiffs' "tort claim against the City ... is governed by HRS Section 662-4"; from the foregoing premise, the City suggests that because "Whittington holds that HRS Section 657-13 ... does not apply to actions brought under 662-4,""there is no tolling" of the two-year statute of limitations.Correlatively, the City asserts that Orso stands for the proposition that "[HRS]Section 657-7 is inapplicable in this action[,]" inasmuch as "[HRS]Section 662-4 is the two[-]year statute of limitations provision for a `tort claim' against ... the counties."The City therefore contends that "the tolling statute does not apply ... [and] all claims...